Friday, September 21, 2012

Earlier this week, Durham went to the 4th Circuit, in
an attempt to terminate the civil suit filed by the falsely accused players—before
discovery has even commenced. I had previously speculated that this was
something of a longshot effort, given Judge
Beaty’s summary of Durham’s highly troubling basic contention: that “no provision of the Constitution has been violated,
and that no redressable claim can be stated, when government officials
intentionally fabricate evidence to frame innocent citizens, even if the
evidence is used to indict and arrest those citizens without probable cause.”

After the oral arguments, however, it’s clear that there’s a good
chance the suits against the city could come to an end. Two of the judges,
Harvie Wilkinson III and Diana Motz, seemed undecided but asked difficult
questions of the falsely accused players’ attorney, Christopher Manning. If
either Wilkinson or Motz vote with Durham, the case will end, since the third
member of the three-judge panel, Roger Gregory, gave every indication of having
made up his mind well before the hearing began. Indeed, at times Gregory advanced
arguments that went well beyond anything that even Durham’s own attorney
offered, even to the point of insinuating that the indictments of Dave Evans,
Collin Finnerty, and Reade Seligmann were legitimate.

(The court uploaded the full audio of the proceedings yesterday,
and I’ve included clips of some of the hearing’s key segments as links within
this post. Audio links, which are in red, will take you to my personal website;
click the back arrow to then return to this post.)

The two sides had previewed their arguments in the briefs; Durham
attorney Michael Vatis stressed that the indictment by the grand jury shielded
the city from liability and that Nifong, in his capacity as prosecutor, rather
than Durham city employees made the decision to seek indictments. (Vatis didn’t
explain how or why the Durham police allowed Nifong, a county prosecutor, to
supervise the police investigation after March 27, 2006.) Christopher Manning,
representing the falsely accused players, relied largely on Judge Beaty’s
framing of the case, adding that the magnitude of wrongdoing to Durham
officials justified the case going forward, at least through discovery.

Vatis did make one quite intriguing statement. After suggesting
that there were other alternatives to a civil suit—administrative proceedings,
perhaps a criminal investigation—to punish inappropriate behavior by the DPD, he
noted that no other inquiry had found wrongdoing by the DPD. He implied that
even if discovery occurred, the plaintiffs would find nothing.

Judge Motz asked the relevant follow-up question—had such inquiries actually taken
place? After dancing around the issue, Vatis conceded that Durham authorities hadn’t
pursued any of these alternative methods. Of course, it was worse than that—in 2007,
the city leadership shut down the investigation of the DPD after one hearing,
citing an insurance company’s concern that the inquiry might uncover
information that would damage the city’s civil case. And now the city cites the
fact that its short-circuited police investigation found nothing as a reason
that the civil suits lack a factual basis.

Both Wilkinson and Motz appeared to struggle with how the
magnitude and the type of wrongdoing by law enforcement made it difficult to
find appropriate precedents (for either side) to guide the court. Motz was
blunt in her belief that the DPD hadn’t behaved appropriately; Wilkinson
pressed Vatis on the seriousness of the allegations. Neither was
hostile to Vatis, but neither similarly appeared willing to accept Vatis’
suggestions that nothing much serious had occurred in this case, except perhaps
for Nifong’s wrongdoing.

When Manning’s turn came, both Wilkinson and Motz worried about
the broader ramifications of the plaintiffs’ position. Even if the falsely
accused players had been framed, how could the court draw a line that would not
open the way for federal lawsuits from any criminal suspect that thought a
police officer looked at him the wrong way? (Wilkinson worried that the
question here was “whether a hard case makes some really bad law.”) Manning
tried to parry these concerns by noting the extraordinary nature of the
misconduct in the lacrosse case, but neither Wilkinson nor Motz seemed
convinced (though Wilkinson did suggest that the case should be litigated at
the state level if the 4th Circuit blocked a federal suit). If the
falsely accused players do prevail, however, Manning’s uniqueness-of-this-case
argument probably would provide the basis.

That left the third member of the three-judge panel, Judge
Roger Gregory. During the presentation by the city’s attorney, Judge Gregory
contributed little. During the presentation by the lacrosse players’ attorney, Gregory
participated actively, sometimes with extremely hostile questions, other times
with minimizing remarks about the evidence in the case or the nature of the
players’ claims.

Gregory began by mischaracterizing Dr. Meehan’s DNA report,
arguing that it only said that no
matches existed to lacrosse players, whereas (in the section Meehan and Nifong improperly
concealed) it also said that DNA from other, unidentified males was discovered, and it implied
(inaccurately) that Dave Evans’ DNA might be a match. How a finding of other
males’ DNA but not that of any lacrosse players could in any way be considered
consistent with Mangum’s story (that she was raped for 30 minutes by three
people who didn’t use condoms, and she went almost immediately thereafter to
the hospital) Gregory didn’t say. Manning seemed, perhaps unsurprisingly,
rather taken aback with this line of argument.

Echoing Vatis’ argument that the case should be dismissed in
part because no police officers were prosecuted, Gregory argued that a claim of
conspiracy against Durham Police officers was inappropriate, because “you can’t conspire to do something that’s legal,”
and that it certainly wasn’t (as he sounded as if he believed Manning was
arguing) “unconstitutional to bring a weak case to prosecution.”

And in his most troubling line of questioning, Gregory very
strongly implied (though he never quite came out and said so) that the Durham
authorities were within their rights to try and bring the case to trial. Only
“in hindsight” did any evidence of innocence emerge, he claimed. He further
suggested that the fact that false accuser Crystal Mangum never retracted her
charges justified the indictment. In any event, how could the police know that
Mangum was lying, Gregory asked, in an almost contemptuous tone. “Does she allege they were there that night?”
This is an extraordinary standard by which to evaluate allegations of police
misconduct.

Gregory added that, if the suit goes forward, it could set a
precedent, including in “urban” areas. Durham, of course, is an urban area.

Contrast Gregory’s oft-repeated description of the allegations in
the claim—that the authorities merely moved forward with a “weak” case—with
Judge Beaty’s summary of the claims (which, at this stage of the process, are
supposed to be accepted at face value): that “government
officials intentionally fabricate[d] evidence to frame innocent citizens, even
if the evidence [wa]s used to indict and arrest those citizens without probable
cause.”

With Gregory—based, at least, on both his tone
and his line of questioning—as an all-but-certain vote to end the lawsuit, the
only question remaining is whether Wilkinson and Motz will both vote to allow
the case to proceed.

[Update, Saturday 12.57pm: Judge Gregory, it should be noted,
doesn’t have a reputation for being indifferent to abuses by law enforcement. Indeed,
it’s quite the reverse. To take one example: in a high-profile
2011 decision, Henry v. Purnell,
he eloquently wrote of the need to allow a § 1983 action filed by an unarmed
man who was shot by a police officer to proceed. (The officer unpersuasively claimed
he was reaching for his taser, not his gun; the suspect was not killed.) Unlike
the lacrosse case, the Henry case was
a bit further along—summary judgment, rather than motion to dismiss, and so
discovery had already occurred.

In Henry, Gregory made
clear that, at the summary judgment stage, the court needed to view the facts “in
the light most favorable” to the plaintiff’s claims as true. (His questioning
earlier this week, on the other hand, seemed to be construing facts in the
light most favorable to the defendants.)
In Henry, Gregory accurately noted
that courts needed to employ “a test that focuses on the objective legal reasonableness
of an official’s acts,” and that no officer could reasonably believe that
firing a gun at an unarmed man was constitutional. (His questioning earlier
this week, on the other hand, implied that no officer could have realized it
was unconstitutional to participate in a conspiracy to frame innocent suspects,
as long as in so doing the officer accurately reported the contents of his
[manipulated] case file to the prosecutor.) With these tests, Gregory had no
doubt that the Henry case needed to
go to a jury.

Obviously, a debate can be made about whether a police officer
shooting an unarmed man in the heat of the moment or whether police officers,
over a period of many months, conspiring to frame innocent men for a crime that
never occurred constitutes a greater constitutional violation. But it’s
remarkable to see a judge who was so certain that the victim in the first case was entitled to a court hearing seem so
certain that the victims in the second did not
deserve a day in court.]

Saturday, September 15, 2012

One of the more intriguing admissions about the Group of 88 came in 2007, from a prominent member of the Group, history professor (and former Duke
administrator) William Chafe. “Most of us,” he
told the Chronicle,“never presumed guilt.”

In one respect, the remark was preposterous, given that the statement Chafe and the other 87
signed stated without equivocation that they believed something “happened” to
false accuser Crystal Mangum. But the remark was nonetheless revealing, given
that it came at a time when some Duke apologists were falsely claiming that the
statement had nothing to do with the lacrosse case. (It might have been, Charlie
Piot mused, a response to Hurricane Katrina’s(!) aftermath.)

Chafe never said
which member of the Group even he was willing to concede “presumed guilt.” A few
months after Chafe’s remarks, it became clear that one Group member to whom the
history professor possibly referred was Grant Farred, who (falsely) told a
Williams College audience that unnamed
lacrosse players had committed perjury. Farred
soon departed Duke for Cornell, which offered him a position as tenured full
professor. The reckless hiring, however, backfired on the school after Farred attracted
fierce criticism for referring to two students as “black bitches.”

I recently came across a post from one of the few people to speak
up on Farred’s behalf, a Cornell colleague of his named Riché Richardson. Richardson—a
Duke Ph.D. who specializes in (of course) race and gender, and whose most recent tweet praised a "brilliant talk" by the Group member and "thugniggaintellectual," Mark Anthony Neal—is perhaps the only
professor I ever have encountered to have praised herself for her . . . course
syllabi, which she claims “can take a long time to research and days to write” and “and are
valued by students on their own terms as research and learning tools.”

In the event, long after the Farred controversy,
Richardson posted
a tribute to Farred on her blog, in which she expressed concern about “a
climate on campus that creates an intimidating or hostile environment for
Professor Farred.” She would not, huffed Richardson, “appreciate having my own
credentials or attitudes misrepresented in the way that his have been in some
instances, which is also unsettling given my concerns about protecting academic
freedom, collegiality and all the things that reflect the basic values of
academia.”

Richardson’s post is most
interesting for her comments about Farred and the lacrosse case. The man who
called two African-American students “black bitches,” she argued, shouldn’t be
deemed “somehow dismissive of black women.” Why not? Because “in the situation
regarding the black woman stripper who alleged rape in 2006 by members of the
Duke Lacrosse team, he spoke up in her defense by writing a letter clarifying
some of the implications of the situation [link to at
http://friendsofdukeuniversity.blogspot.com/2006/03/expired-documents-2.html ].
Many of the faculty who had the courage to speak out about this situation,
which made national headlines, were threatened, harassed, criticized publicly
and were victimized by a very calculated smear campaign. Some eventually moved
on, including Professor Farred. I respect the very principled and courageous
statement that Professor Farred chose to make in Durham on this case involving
the black woman stripper, and do not take the sacrifices that he made in the
wake of it lightly. The truth is that Professor Farred put everything on the
line at a very prestigious job that he valued to support and help defend a
black woman who he at the time believed had been the victim of rape and racist
epithets.”

The most significant item, of course, from
Richardson’s statement is her last line—even a defender of Farred has publicly
conceded that the Group member presumed guilt: he “believed” Mangum was raped.
Richardson’s claim of Group victimization is as unsurprising as it is unsubstantiated.
But I was struck by her claim that “Professor Farred put everything on the line
at a very prestigious job that he valued.” As far as I know, Farred put nothing
“on the line” related to his job (other than, I suppose, his reputation).
Richardson’s insinuation that there was some sort of connection between Farred
having “moved on” and his having put anything job-related “on the line”
prompted me to ask if she had any evidence about Farred and Duke.

Richardson declined a direct reply to my
question. Instead, she wrote, “The consequences at Duke did not necessarily
relate to jobs, but there were definitely reprisals (i.e. hate mail
and other negative reactions) for faculty who spoke out about that case at the
time, some of whom I know. And even if I indeed defended his
comments, would that be any worse than defending perceived rapists and
racists, as your scholarship suggests?”

“Negative reactions” constitute reprisals! By Richardson’s
standards, Mitt Romney has experienced more “reprisals” than any American alive
in the past week, given the “negative reactions” (whether deserved or not) to
his comments about the attack on the embassy in Libya. Somehow, though, I doubt
that Richardson would apply her “negative reactions” standard to figures with
whom she disagrees.

I admit that I had never previously heard the
lacrosse players described as “perceived rapists.” For Professor Richardson, it
seems, no amount of evidence can overcome a false initial perception.

But to answer the professor’s question: yes, I would say that defending a professor who made materially false
statements (that unnamed students at his own university had committed perjury)
and in the process likely violated the terms of his school’s Faculty Handbook is worse that defending
people who were falsely accused of a serious crime.

Monday, September 10, 2012

A few weeks ago, disgraced former Penn State president
Graham Spanier launched something of a media blitz. His attorney held a press
conference denouncing the Freeh Report (while conveniently saying that Spanier,
who wasn’t present, would answer the tough questions about the report’s factual
findings). Spanier did an interview with the New Yorker’s Jeffrey Toobin, who declined to press Spanier on the
critical piece of evidence uncovered by Freeh—an e-mail from Spanier admitting
that the decision not to report Jerry Sandusky to police might leave the
university “vulnerable” in the future. A follow-up Spanier interview with ABC
mostly revolved around the unconvincing argument that because he was the victim
of physical abuse as a child, it was inconceivable that he wouldn’t have reported
the allegations against Sandusky to authorities.

I wrote about Spanier’s unconvincing defense at Minding the
Campus; and, as DIW readers know, have been interested in the similarities and
differences between how Penn State responded to the Sandusky scandal and how
Duke’s administration responded to the lacrosse case. Stuart and I penned a WSJ op-ed looking at how Penn State, for good or ill, authorized a comprehensive
inquiry into what went wrong and why—in contrast to Duke’s decision to have two
“diversity”-obsessed advocates of the status quo “investigate” and produce a “report”
on the administration’s response to the lacrosse case.

It’s hard to imagine that Penn State’s (or any school’s) faculty could do
anything comparably embarrassing to the Group of 88 statement (and the Group’s
subsequent rationalizations and refusals to apologize). But it’s also hard to
imagine what 30 former and current faculty leaders at the school could have
been thinking when they produced a
recent letter that exhibited a sense of epistemic closure that would rival
the Group of 88 in its bunker.

After what comes across as a token expression of outrage and
sadness on behalf of Sandusky’s victims, the PSU profs quickly get onto the
real victims—people who work at Penn State, victims of the “current hyperbolic media environment.” (The professors couldn’t find
space to identify a single example of this “hyperbolic media environment.”)

Of the Freeh Report, the letter concedes
its “investigation appears to have been reasonably thorough, given that it
could not subpoena testimony.” (Ironically, a document released by Spanier’s
attorney criticized Freeh for relying on
subpoenaed testimony from ex-assistant coach Mike McQueary, rather than defying
prosecutors’ requests and interviewing McQueary himself.)

But . . . “as a document in which evidence,
facts, and logical argument are marshaled to support conclusions and
recommendations, the Freeh Report fails badly. On a foundation of scant
evidence, the report adds layers of conjecture and supposition to create a
portrait of fault, complicity, and malfeasance that could well be at odds with
the truth.”

In what ways is the Freeh Report’s evidence scant? Who
knows? Is the document truthful or not? Who knows? Far be it from Penn State
faculty members to examine the evidence presented in the report and demonstrate
items in the report that are factually inaccurate.

Such work, it seems , isn’t necessary—because “as
scientists and scholars, we can say with conviction that the Freeh Report fails
on its own merits as the indictment of the University that some [who?] have
taken it to be. Evidence that would compel such an indictment is simply not
there.” The evidence for this sweeping assertion? The “scientists and scholars”
present none. Perhaps they ran out of ink.

The “scientists and scholars” seem particularly
perturbed with the Freeh Report’s (and the NCAA’s) remarks about Penn State
culture. “Not only are these assertions about the Penn State culture unproven,”
they thunder, “but we declare them to be false.”

The evidence for this sweeping assertion? Their own
personal experience. “As faculty members with a cumulative tenure at Penn State
in the hundreds of years, and as former Faculty Senate chairs with intimate
knowledge of the University stretching back for decades, these assertions do
not describe the culture with which we are so very familiar. None of us has ever
been pressured or even asked to change a grade for an athlete, nor have we
heard of any cases where that has occurred . . . Some of us have privately
witnessed swift and unyielding administrative actions against small
transgressions, actions taken expressly to preserve academic and institutional
integrity.”

The “scientists and scholars” apparently didn’t
notice the interference by the former football coach in the disciplinary
process—in instances far more significant than “small transgressions”—that were
revealed
in the Chronicle of Higher Education. Do the professors “declare”
those “to be
false,” as well?

The professors’ letter is an embarrassment to their
institution. As “scientists and scholars,” they should know better.

Wednesday, September 05, 2012

Careful (or even not-so-careful) readers of the Herald-Sun cannot help but notice its
recent pattern of inserting unexplained editorial judgments into “news”
articles that reference either Durham-in-Wonderland or Until Proven Innocent. (Curiously, the articles in question do not
mention the title of either the book or the blog.) In a way, this development
represents a welcome change from the paper’s approach during 2006, when its
“news” articles concealed an almost comical pro-Nifong spin behind a pretense
of faux objectivity.

The most recent instance came in a Ray
Gronberg article that described Bob Ekstrand’s resisting Duke’s efforts to
compel testimony from him regarding exchanges he had with non-lacrosse players,
including President Brodhead, Tallman Trask, Stuart Taylor, and me. (Ekstrand represents
three of the former players suing the university.) In his article,
Gronberg—without citing even one piece of evidence—describes Until Proven Innocent (again, without
referencing its title) as “a 2007 book sympathetic to the players.” It’s quite
true that both the book and the blog exposed ways in which Duke, Nifong, the
Durham PD, and certain media sources (including the Herald-Sun, in behavior
for which the paper’s editor very belatedly issued a half-hearted apology) mishandled
the case, but Gronberg’s article doesn’t suggest that any relevant statement
made in the book or blog about the lacrosse case that was incorrect. As even
the H-S is fully aware, critical
commentary about one side’s behavior does not necessarily constitute a
“sympathetic” portrayal of the other side.

Gronberg then insinuates—but carefully does not specifically
allege—collusion. In writing about how the book and blog portrayed Sgt. Mark
Gottlieb, the H-S reporter notes that
“Ekstrand’s most prominent contribution to the case is a theory—embraced
by Johnson, Taylor, and all three of the legal teams now pursuing lawsuits
against Duke and the city—that the police sergeant [Gottlieb, whom Gronberg
doesn’t name] who supervised the investigation of Mangum’s claims was a rogue
cop pursuing a vendetta against Duke students.” [Emphasis added]

Leaving aside the dubious claim that this “theory” constituted
“Ekstrand’s most prominent
contribution to the case,” I gladly would have told Gronberg had he asked me
(for the record, he did not do so, nor did he contact Stuart) that I found all
the evidence I needed to conclude that Gottlieb was a rogue cop in summer 2006,
solely by reading the Gottlieb “notes”—the straight-from-memory report typed
months after the fact by the ex-DPD officer. The document, which Gronberg
doesn’t mention in his “news” article, conveniently plugged many of the holes
then existing in Nifong’s case, often by contradicting contemporaneous written
notes from other police officers.

And I reached the conclusion that Gottlieb was targeting
Duke students by reading of his behavior in the newspaper. In September 2006,
the N&O exposed the existence of and
the Chronicle fleshed out the effects
of the separate-but-equal arrangement in which the Duke administration and the
DPD agreed that Duke students would be treated more severely than any other
Durham residents for similar allegations of alcohol-related crimes. Gronberg
doesn’t mention the N&O’s or the Chronicle’s reporting as my sources, even
though I cited both; doing so, of course, might have reminded H-S readers of how late the paper came to
this major story from its own backyard, or even of Gronberg’s
own ineffective efforts to discredit the reporting of his rivals.

Both the book and the blog devoted considerable space to
exposing the Herald-Sun’s
shoddy reporting on the lacrosse case. As UPI
noted, “When the police and Nifong demonized the lacrosse players and canonized
the ‘victim,’ the media were happy to provide unskeptical coverage, as theHerald-Sun
did in its March 25 front-pager quoting Cpl. Addison. And when an
opportunity presented itself for journalists to do their own demonizing and
canonizing, they seized it with relish. Among local papers, the Herald-Sun, the only Durham-based newspaper
of significant circulation (about 45,000 in spring 2006, but falling fast)was incomparably biased in the more
than 300 articles and 20 unsigned editorials it churned out in 2006, savaging
the lacrosse players and downplaying or omitting altogether the ever-growing
evidence of innocence.” The blog provided specific occasions of this behavior,
while singlingoutforcriticismtheconsistentbias
of the Herald-Sun’s editor, BobAshley.

A cynical person might suggest a relationship between the Herald-Sun’s lacing its “news”
articles with unsubstantiated editorial judgments and the criticism both the
book and the blog made of its (and its editor’s) substandard performance during
the lacrosse case. Alas, the H-S’s
new editorializing style doesn’t extend to referencing this criticism, which
might give readers the context necessary to understand the publication’s current
approach.

To reflect on the merits of the Herald-Sun’s record regarding the lacrosse case, it might be worth
quoting from the Chronicle’s post-exoneration analysis. After struggling to find media observers who had even bothered
to read the paper, Chronicle reporter
Adam Eaglin interviewed with Bill Green, a
former Washington Post ombudsman who
then lived in Durham. Green’s analysis: “TheHerald-Sunhas consistently failed to presume the
innocence of these three people. They leapt to judgment early and stayed with
that thinking.”

Two final notes: (1) The Gronberg article did contain one
potentially intriguing nugget. After falsely insinuating that Stuart and I
might have concluded from exchanges with then-defense attorneys that Gottlieb
was a rogue cop with a vendetta for Duke students, Gronberg reported, “Police
commanders have disputed that.”

Since Gronberg doesn’t cite the police commanders to whom
he’s referring, it’s not clear if he based that sentence on his analysis of
Durham’s legal filings (which were never quite that definitive) or from
background conversations with unnamed police commanders. If the latter, this
revelation would be important indeed, since it would constitute Durham’s
admission that a police officer who: (a) blindly followed orders to set up a
photo array in violation of DPD policies; (b) produced a highly suspicious
typewritten report months after the fact that wasn’t based on his contemporaneous
written notes; and (c) behaved (at best) dubiously toward non-lacrosse students
wasn’t, in fact, “going rogue” (the explanation most favorable to Durham) but
instead was behaving as Durham thought a DPD officer should under these
circumstances. Will Durham embrace this admission in court?

(2) Stuart passes along this comment:

I agree completely with everything
in KC’s post. I would add that the only sense in which we were “sympathetic” to
the lacrosse players is that we were very glad to cite the overwhelming
evidence that they were completely innocent of the monstrous crimes of which
they were so widely presumed guilty; that they were a very decent group of
young men; and that their accusers—including many in the media and at Duke as
well as Durham law enforcement officials—behaved disgracefully. We also
included in our book all relevant evidence of which we knew that reflected
unfavorably on any of the lacrosse players.

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About Me

I am from Higgins Beach, in Scarborough, Maine, six miles south of Portland. After spending five years as track announcer at Scarborough Downs, I left to study fulltime in graduate school, where my advisor was Akira Iriye. I have a B.A. and Ph.D. from Harvard, and an M.A. from the University of Chicago. At Brooklyn College and the CUNY Graduate Center, I teach classes in 20th century US political, constitutional, and diplomatic history; in 2007-8, I was Fulbright Distinguished Chair for the Humanities at Tel Aviv University.

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"From the Scottsboro Boys to Clarence Gideon, some of the most memorable legal narratives have been tales of the wrongly accused. Now “Until Proven Innocent,” a new book about the false allegations of rape against three Duke lacrosse players, can join these galvanizing cautionary tales . . , Taylor and Johnson have made a gripping contribution to the literature of the wrongly accused. They remind us of the importance of constitutional checks on prosecutorial abuse. And they emphasize the lesson that Duke callously advised its own students to ignore: if you’re unjustly suspected of any crime, immediately call the best lawyer you can afford."--Jeffrey Rosen, New York Times Book Review